[2019] FWC 4763

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shaun Boyce
v
IKON Administration Pty Ltd
(U2019/2314)

COMMISSIONER WILSON

MELBOURNE, 6 SEPTEMBER 2019

Application for an unfair dismissal remedy.

[1] This decision concerns the merits of Shaun Boyce’s dismissal by IKON Administration Pty Ltd (IKON) which amongst other things provides cleaning and facilities managements services at Crown Casino. 1

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. While IKON originally lodged an objection to the application on the grounds that the application was not made within the 21 day period for making such applications, this objection was withdrawn at the commencement on the hearing for reason that the application was made on 1 March 2019, 21 days after Ms Boyce’s termination on 8 February 2019. Neither party put forward that any of the other initial matters required such consideration. In relation to the elements within s.396, I find that Mr Boyce’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the relevant time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] Being satisfied that the criteria within s.596(2) of the Act relating to whether or not permission for representation of the parties by a lawyer or paid agent had been enlivened, the Applicant was represented by Mr Mark Comito, solicitor, of STAL Legal.

[4] For the reasons set out below, I have found that Mr Boyce was unfairly dismissed; that reinstatement as a remedy is not appropriate, but that an order for compensation is appropriate.

BACKGROUND

[5] Mr Boyce commenced employment with IKON in June 2017 in the role of a Ute Driver. His employment had initially been as a casual employee, however he became permanent full-time in or around July 2018, 2 when he was taken off Truck Driver duties and reassigned to Bin Operator/Cleaning duties.3 The circumstances under which this change occurred and whether or not it was at his instigation or the company’s is a matter of dispute. On occasions though, and after June 2017, he was asked to accompany a driver in a truck and assist them in their duties.

[6] Mr Boyce was dismissed in the letter of termination sent to him dated 12 February 2019 which held the following contents:

“Dear Shaun,

Termination of your employment

I am writing to you regarding the decision to terminate your employment with IKON Administration.

I refer to the meeting attended by you on 8'" February 2019 at the IKON management office at Crown Casino with Michael Girgis (Operations Manager), Sam Joshi (Bins Package Manager) and Kostas Papadopoulos (Bins Team Leader). During this meeting, we discussed with you our serious concerns relating to:

• Breach of company procedure whereby you instructed a less experienced truck driver, Jonathan Granil, to take a short cut by driving through a taxi rank on 7'" February 2019

• Failure to follow correct incident reporting procedure whereby you reported the short cut incident to the Externals team leader, Ljupco Kekovski, instead of reporting it to the Bins team leader, Kostas Papadopoulos

• Damage to IKON property (Truck transmission case)

• First Written Warning Issued 30'" November 2018 whereby you failed to follow correct procedure relating to your servicing ofthe Bins stations

During the meeting you had initially denied instructing Jonathan Granil to take the short cut on 7^th February 2019, however you then confirmed later in the meeting that you had instructed Jonathan. You advised us that you had instructed Jonathan to take the short cut in order to get to the area quickly. You further confirmed that you knew that this was a breach of IKON and Crown policy and procedure, as well as your failure to adhere to correct incident reporting guidelines. You also confirmed that you had used the same route in the past, despite knowledge that it was the wrong procedure.

Taking into account your recent formal written warning, previous training and re-fresher training, numerous verbal coaching, ongoing poor performance and breaches of IKON Employee Handbook and Crown Code of Conduct, and ongoing failure to meet the expectations which have been explained to you, we have no choice but to terminate your employment with the company.

You will not be required to work your notice period and any entitlements due to you will be processed and paid to you in the next 7 days. You should make arrangements to return any IKON property to the company head office at the address above.

Please contact me on [phone number omitted] should you have any questions.

Yours sincerely,

Matthew Ford

HR Manager” 4

[7] Four witnesses provided oral evidence as well as written witness statements in these proceedings and one provided a written statement however, was not available or required for cross-examination. The Applicant, Mr Boyce provided a witness statement and gave oral evidence and was the only person to do so on his behalf. Mr Granil, Mr Joshi and Mr Girgis each gave a witness statement and oral evidence on behalf of the Respondent. Mr Kekovski provided a witness statement and was willing to give oral evidence on behalf of the Respondent however, a family bereavement made him unavailable at the date of the hearing and he was not required for cross-examination.

Incident November 2018

[8] As referred to in the letter of termination above, IKON submits that in November 2018 Mr Boyce received a written warning about his performance.

[9] The warning stemmed from circumstances in November 2018 in which Mr Boyce was undertaking a night shift at Crown Casino cleaning bins at a location referred to as “Yarra 4 bins” but did not finish cleaning the red bins. Mr Boyce submits that his supervisor at the time, Jason, told him to move on to clean the remainder of the bins if he did not have time to finish cleaning the red bins which he did and which he reflected in his Bin Collection Checklist. 5 A meeting occurred between Mr Boyce and his manager, Sam Joshi, on 30 November 2018 in relation to the red bins not being emptied.6 Mr Joshi puts forth that he issued a First Written Warning to Mr Boyce as a result of this incident on 30 November 2018 on the grounds of ‘falsifying his servicing of the Yarra 4 bin area and not undertaking his required duties and failure to adhere to company policy and procedure.”7 While Mr Boyce did not sign the warning as he wished to have his union representative examine the warning first, Mr Joshi submits that he explained to Mr Boyce that “while he elected not to sign the Warning letter, his First written warning still stood and would remain on his personnel file.”8

[10] Mr Boyce contests that such a warning was ever issued, instead submitting that Mr Joshi advised him that he intended to issue a warning however did not do so. After Mr Boyce advised Mr Joshi, he wished to seek advice from his union it is Mr Boyce’s evidence that no warning eventuated. 9

[11] A warning notice dated 30 November 2018 was submitted by IKON which has not been signed by either Mr Boyce, Mr Joshi or Mr Matthew Ford, the HR Manager who completed the notice. The notice includes the following material:

“You were asked at this meeting if you wished to respond because when you did your shift as per your roster Wednesday 10:00 pm to 6:06am you have been instructed to do Yarra's bin station as per normal requirement throughout your shift. you delivered all other bins except co- mingle bins. As per bin book record you did service Yarra 4 bin station more than four times out of four times didn't delivered any empty co- mingle bins.

After considering the situation, available evidence, witness statements and your response, IKON does not believe your explanation fully mitigates your actions. To clarify, our expectations are that you:

• Refrain not to follow instruction by your supervisor or team leader

• Adhere to IKON Handbook and Crown Code of Conduct by ensuring that you are honest, professional and respectful all times.

This letter serves as a first written warning that your conduct has fallen below the standard required. IKON will monitor and review your future conduct and if a significant improvement is not achieved immediately, further disciplinary action may be taken. This could result in the termination of your employment.

This warning provides you with an opportunity to learn from this mistake and should be treated as a development opportunity. IKON is committed to providing you with the support and training you require to perform your job effectively, therefore if you require any further training or advice please contact your supervisor or manager who will arrange this for you.” 10

Incident 7 February 2019

[12] The incident which led to Mr Boyce’s dismissal occurred near to 4.30 AM on Thursday, 7 February 2019. At or around that time a rubbish truck being driven by Jonathan Granil and with Mr Boyce as his passenger was travelling from a collection point at the Crown Promenade Hotel in Melbourne’s Southbank toward another collection point in the Crown Casino complex referred to as the compound, undertaking hard rubbish collection of items such as bed frames, trolleys, etc. 11 That journey ordinarily would have been a short drive from the compound in the Crown Promenade in Whiteman Street, driving down Whiteman Street, going under the Kingsway overpass; turning left at Clarendon Street and then turning left again at Haig Lane. In other words; by driving around the block, and not taking a short-cut.

[13] Immediately after turning into Whiteman Street when going under the Kingsway overpass there is a taxi laneway and waiting area running between Whiteman Street and City Road, with the laneway intersecting with Haig Lane. While the laneway is restricted to taxis only, Mr Boyce did concede during the hearing that on previous occasions he had used the laneway for access when he was driving the company’s ute, but had ceased such practices when he stopped regularly driving the ute in June 2018. 12 On the date of the incident when Mr Boyce and Mr Granil were approaching the taxi laneway, a decision was made to turn left into the taxi laneway with the parties diverging on who is responsible for that decision. Mr Granil submits that Mr Boyce told him to drive down the laneway, while Mr Boyce puts forth that not only did he not instruct Mr Granil to enter the taxi zone but that he actively remonstrated Mr Granil from taking that route.

[14] It is agreed between the parties that the truck should not have entered the laneway and in doing so incurred damage to the vehicle when it ran over a concrete block, also described as a bollard. The damage incurred by the truck was to its transmission, which having struck a concrete block began leaking transmission fluid. Mr Granil drove the truck further down the road 13 where he parked the truck and called Mr Kekovski who attended the incident scene and reported that he “saw a trace of oil that went from the taxi rank and all the way to a compound where the truck was parked”.14 Mr Granil and Mr Boyce realised the damage, but how soon after the impact is a matter of dispute.

[15] In effect there were two matters of concern for IKON which led to Mr Boyce’s dismissal:

1. the allegation that he directed Mr Granil to drive into the taxi laneway, which in turn caused damage to the truck driven by Mr Granil; and

2. that he neglected to inform his immediate supervisor, Mr Kosta Papadopoulos, of the incident when it occurred.

[16] In relation to the first allegation it is not in dispute that Mr Granil drove the truck into the laneway; that the vehicle incurred damage as a result of hitting a concrete block; and that the damage to the truck was in the order of $5500. It is also not disputed that, as a result of the incident, Mr Granil received a first warning in relation to what happened.

[17] Mr Boyce’s evidence about the morning is that he began his shift on 7 February 2019:

“by undertaking a bin wash at Crown Promenade. During my shift, my team leader Kosta Papadopoulos, instructed me to go into the truck and assist a co-worker, Jonathon Granil, with the hard rubbish collection at Crown Promenade. I agreed to assist. I entered the truck and was accompanied by Jonathan Granil who was driving the truck. At approximately 4 am, we proceeded towards the intersection outside of Crown Promenade. I knew the area well as I had previously undertaken trips in the Ute in this area when I was driving the Ute to assist with the collection and cleaning of rubbish bins. I recall informing Mr Granil not to attempt to take a shortcut through the taxi rank at Whiteman street, Southbank, after he had placed his indicators on to turn left into the taxi rank area. I did not believe it was safe to do so with a truck. Mr Granil ignored my advice and instead drove through the taxi rank. I heard a scrape as the truck passed through the taxi rank and over a concrete bollard.” 15

[18] Mr Granil’s evidence on the subject began with explaining how the left hand turn came to occur:

(MR GIRGIS) “Please explain to me from the point where you picked up the rubbish at Promenade and you ended up at the compound, can you explain to me what happened please?---Well, we picked up the hard rubbish from the Promenade and then we got in the truck, me and Shaun got in the truck, and as soon as we were out in the open in the street, after the traffic lights he instruct me to turn left, which is a shortcut I believe to go to our compound. And because he had so many experience I value his experience so I followed his instruction.” 16

“Until the point of - until the incident which occurred on 7 February you had been employed for about - between seven and eight months approximately. Have you ever used the shortcut - that shortcut in the past?---No, never.” 17

[19] Mr Granil has held a Victorian driver’s licence for over 20 years and has never lost his licence. He was asked by Mr Girgis about his reasons for taking the laneway shortcut:

Why did you feel the need to follow instructions on the morning of the 7th when Shaun was with you?---Well, he's been in company longer than me so I valued his opinion as we are workers, we work as a team.” 18

[20] Further questions on the subject were put to Mr Granil in cross-examination. After accepting that he was in charge of the vehicle; that he and Mr Boyce were working as part of a team; that Mr Boyce had told him he had used the laneway before; and that Mr Granil did not consider the request to be dangerous, the following exchange occurred:

(MR COMITO) “You would accept wouldn't you that being the driver of the vehicle you are in control of the vehicle, aren't you?---Yes, I am.

You would accept that if a passenger makes a suggestion to turn or do an illegal manoeuvre or turn, that ultimately you bear the responsibility don't you because you're in charge of the vehicle?---If you say so, yes.

Well as a general proposition you were driving the vehicle - - -?---He is not a passenger, he is an employee.

Yes, but you are in charge of the vehicle aren't you?---Yes, I was driving, yes.

So you could have consciously said to Mr Boyce no, that's not right. I will continue down Whiteman Street?---I valued - like I said we are team, we work as a team so at that time I valued his opinion for me to turn left. So I indicated my indicator, turned left and that's it.

Were you aware of this - so can I just say that if a passenger asked you to take a shortcut and it was dangerous, it appeared to be dangerous, you would just agree with that?---No, I don't - if I - at the time I don't think it was dangerous because he told me that he use this way before.

He told you - when did he tell you he used that way before?---When he was - I can't recall the date but he mentioned to me that he used that road before.

On 7 February? On the night in question when you turned into the - - -?---No, I can't recall the date but not on the 7th. He told me - I can't recall the date when he told me but not on the 7th.” 19

[21] Mr Granil also gave evidence that Mr Boyce pointed for Mr Granil to take the shortcut but could not remember which hand was used to point. 20

[22] Mr Boyce’s oral evidence on the matter was circumspect and largely followed the narrative in his written statement. In several parts of his statement, Mr Boyce argued that he had not told Mr Granil to turn left into the laneway and had instead told him not to:

• At the time of the incident, on 7 February 2019, he recalls “informing Mr Granil not to attempt to take a shortcut through the taxi rank at Whiteman street, Southbank, after he had placed his indicators on to turn left into the taxi rank area. [Mr Boyce] did not believe it was safe to do so with a truck. Mr Granil ignored [his] advice and instead drove through the taxi rank” 21

• In the meeting on 7 February 2019, attended by Mr Joshi and Mr Papadopolous, he “informed Mr Joshi of what had occurred including that [Mr Boyce] had advised Mr Granil not to take the shortcut through the taxi rank knowing this could be dangerous with the truck that he was driving”. 22

• In a disciplinary meeting on 8 February 2019, he “informed Mr Girgis of my account of the incident including that I had informed Mr Granil not to take the shortcut through the taxi rank. Mr Girgis did not believe me and alleged that I had directed Mr Granil to take the shortcut through the taxi rank”. He “also stated that [he] had specifically instructed Jonathan Granil to not drive the truck through the taxi rank”. (references omitted) 23

[23] In his oral evidence, Mr Boyce maintained this evidence, but did not meaningfully add to its limited narrative:

(MR COMITO) “Can you please explain what occurred on the morning of the incident, on the 7th with yourself and Jonathan in the truck?---On that morning at 4 pm - at 4 am, sorry, I was in the truck with Jonathan, we were collecting hard rubbish from the promenade. We left the promenade, we crossed over the lights and Jonathan put his indicator on, I told him not to take the shortcut underneath Kings Way. He refused to listen to me and took the shortcut and wrote a statement stating that I told him to go that way.” 24

(MR GIRGIS) “Can you tell me what you did say?---Well, Jonathan put the indicator on, he went to go turn, I said to him that he shouldn't take that shortcut because the truck was too low and then he would damage the truck and it wasn't a part of company policy.

You remember saying those words?---Yes.

Did Jonathan say anything to you about that advice you'd given him?---No, he didn't respond to the advice that I gave him, he just took the shortcut.” 25

[24] It bears repeating that the only people who know what went on in the truck’s cabin are Mr Granil and Mr Boyce.

[25] Irrespective of what was said, Mr Granil drove into the laneway, struck a concrete object or bollard and caused damage to the truck. Mr Granil submits that prior to that occasion he has never taken the short cut through the laneway previously. 26

[26] Mr Granil does not recall having heard or otherwise sensed the truck hitting the concrete block. The first he knew there was a problem was when he lost brake pressure and the truck couldn’t be driven any more. 27 When he realised this problem, he says he stopped the truck and he and Mr Boyce got out to see what the problem was. He observed there was a trail of liquid along the laneway for some distance. When he realised what had happened he called his supervisor, Mr Papadopoulos who then attended the scene. The first time that Mr Granil realised something was wrong was when he got out of the truck; until that point he had not realised he had driven over the bollard:

“But you stated that you realised something was wrong when you got out of the truck. That was the first time you realised something was wrong?---Yes.

You remember that?---Yes. Like I said before, there was a leak underneath the truck, I lost pressure, there's no brake(?), so we called the supervisor and he came in, and then after that I left. I went back to work.

So you didn't realise at the time you drove over the bollard that you hit something, did you?---Like I said, that's all that I can recall. I made my statement, called the supervisor, and anything happened about that, I went back to work. It was - the supervisor was sorting things out. That wasn't my duty to hang around and investigate every corner or the road, what's going on. So I just went - so I have my recollection of me looking around, what's happening, and I went back to work.” 28

[27] For his part, Mr Boyce did not call Mr Papadopoulos his direct supervisor; instead he called Mr Kekovski, known as the External Package Team Leader. He rang him since he believed “he was the correct person to do the clean up and I've been witness to many of my co-workers calling him in the past”. 29 Further:

“I considered that the leaking transmission fluid was unsafe and called the external team leader, Ljupco Kekovski to inform him about the incident. I believed that he was the appropriate person to clean the transmission fluid because he was well equipped with washing away fluids and I recall others calling him in the past to clean spillages of oil from work vehicles; grease beneath the compactors and drain blockages. I believed that I was following company policy to ensure a safe workplace or environment by calling Mr Kekovski.” 30

[28] With the incident having taken place at or around 4:30 AM, with Mr Boyce’s shift being due to conclude at 6:00 AM and after reporting the incident and dealing with the immediate aftermath both Mr Boyce and Mr Granil finished their scheduled work at 6:00 AM.

[29] After finishing his shift Mr Granil left the site and was not interviewed on that day by a company representative. 31

Boyce meeting 7 February 2019

[30] Towards the end of Mr Boyce’s shift on 7 February 2019, shortly after 6:00 AM, Mr Boyce was asked to attend a meeting about the incident. Mr Boyce’s evidence is that the meeting occurred at around 6.10 AM and that aside from him, it was attended by Mr Joshi and Mr Papadopolous. 32 Mr Boyce recollects that he “informed Mr Joshi of what had occurred including that I had advised Mr Granil not to take the shortcut through the taxi rank knowing this could be dangerous with the truck that he was driving”.33 The evidence of Mr Girgis and Mr Joshi is that the meeting was at 6.30 and attended by Mr Girgis as well.34

[31] Mr Girgis recollects in his witness statement that Mr Boyce had “provided his account of the Incident and after being questioned, he denied giving Jonathan any instructions to take a shortcut and drive down the wrong path”. 35 In his oral evidence Mr Girgis recollects forming the view during the meeting on 7 February that Mr Boyce had instructed Mr Granil to turn the truck into the laneway, albeit that Mr Granil had not yet been interviewed by anyone.36 However, in finality on that day Mr Girgis was “comfortable” with Mr Boyce’s answer that he denied he had been responsible.37

[32] Mr Joshi gave evidence that during this meeting “Mr Boyce failed to admit that he had done the wrong thing by instructing Jonathan to take a short cut when they were in the truck that morning”. 38 Further, he had made the assumption that it was Mr Boyce who was at fault for the incident when he had learned, before the meeting, that Mr Boyce had been a passenger in the truck. Pertinently:

“Jonathan Granil, obviously with company from long time, never had any issue or any mistakes or anything for his driving history, or also his work history. And the once incidence when Shaun Boyce joined him to help him with hard rubbish, and this thing happen”. 39

[33] In his oral evidence, Mr Girgis first said he agreed he had gone into the meeting “with a fair mind”, 40 however also accepted that he had gone into the meeting with the assumption that Mr Boyce had in fact instructed Mr Granil to enter the laneway because of the difference in the pair’s driving abilities.41 He had made this assumption because of his experience, of greater than six months previously of Mr Boyce being an erratic driver and someone prone to taking shortcuts. Mr Girgis had, at that time, not interviewed Mr Granil or heard his explanation for the incident. When asked why he had questioned Mr Boyce if he had instructed Mr Granil to take the shortcut, Mr Girgis gave the response that his assumption was based on a probability:

“On what probability?---Well, as I mentioned, you have got a guy with – who has never taken this shortcut, and another person who was removed from driving for driving indiscretions and also to mention – Shaun is never with the driver, it was the one time to assist – this is not a daily occurrence. This happens maybe once a month. So – just putting two and two together.” 42

[34] Further:

“Given prior facts, and history – given Shaun's history with driving, and Jonathan's, and Shaun jumping on the truck – yes, there was probability there. There was possibility, if you would like to say, so I have asked the question and he has given me a straight answer which I have put in my statement, and he has denied giving him instructions.” 43

[35] After the 7 February 2019 meeting concluded Mr Boyce went home. While Mr Girgis tried to contact Mr Granil, he was unsuccessful.

Granil meeting 8 February 2019

[36] IKON’s management returned to the subject of the incident at the end of the next morning’s shift, on Friday, 8 February 19. At the conclusion of the morning’s shift, IKON interviewed Mr Granil for the first time in a meeting with Mr Joshi and Mr Girgis. 44 Mr Granil was first asked for an explanation and he then wrote out a brief statement on the subject:

“Statement from Jonathan

I was at promenade, we doing hard rubbish with another team member.

There was a pallet so I request my team leaders to help me. Another staff member came with me. I was driving and going compound. Shaun the other team member told me to turn left@just before we finished passing the traffic lights. Previously he told me to use the same way before so I drove that lane towards the compound.

When I drive off I accidentally hit a concrete.

Jonathan Granil” 45

[37] Mr Boyce’s denial of having suggested to Mr Granil that he should turn left into the taxi laneway was not put to Mr Granil by anyone on that occasion.

[38] Following the meeting on 8 February 2019, a conduct warning was issued by IKON to Mr Granil. The relevant terms of the warning given to Mr Granil include:

“I refer to the meeting held on 8th Feb. 2019 between you, Sam Joshi (FOH Package Manager) and Michael Girgis (Operations Manager), regarding a serious concern to damaged bin vehicle using short cut to dump all hard rubbish In compound located underneath of king's way bridge.

As per your job description you are not allowed to use any short cut and need to follow exactly same route what you have been shown during your Induction. You failed to report to your supervisor/Team leader regarding Incident. As you admitted that you follow Instruction from senior IKON employee to use short cut by saying that you breach IKON vehicle policy.

During meeting as you agreed that you did wrong thing by following Instruction from senior IKON staff members. As you admitted that Shaun Boyce (Senior IKON staff member) give you Instruction to use short- cut to dump all hard rubbish Inside compound which Is located underneath of kings way bridge.

This letter serves as a First and Final written warning that your conduct has fallen below the standard required. IKON will monitor and review your future conduct and If a significant Improvement Is not achieved Immediately, further disciplinary action may be taken. This could result in the termination of your employment.

This warning provides you with an opportunity to learn from this mistake and should be treated as a development opportunity. IKON Is committed to providing you with the support and training you require to perform your job effectively, therefore If you require any further training or advice please contact your supervisor or manager who will arrange this for you.

Yours sincerely

Matthew Ford” 46

Boyce meeting 8 February 2019

[39] Shortly after the 8 February 2019 management meeting with Mr Granil, Mr Boyce was called into a second meeting regarding the incident. In addition to Mr Boyce, the meeting included Mr Joshi, Mr Girgis and Mr Papadopolous. 47 Mr Girgis recollects saying to Mr Boyce that Mr Granil had told him that Mr Boyce had instructed him to turn into the laneway:

“And what did you say during that meeting?---After that meeting, well, during the meeting we asked him – we have explained to him that – what Jonathan had told us. He denied it again. But then following further discussions, he did say that he had used the shortcut in the past, and it was safe to use.

And he did not say, during that meeting, did he, that he admitted instructing Jonathan during the 7th of February?---Yes, he did. He never admitted to giving instructions.

Yes, so he did not admit?---Yes, I have said that on multiple occasions – he did not admit giving Jonathan instructions. The one thing he did admit was taking the shortcut previously, and on multiple occasions. And he said it was generally safe to use.” 48

[40] At this point the protagonists’ recollections of what was said in this second meeting with Mr Boyce departs. The management representatives giving evidence, Mr Girgis and Mr Joshi, recollect that having been told that Mr Girgis had blamed Mr Boyce, the latter then accepted the blame with their discussion then switching to the possibility of Mr Boyce resigning from employment.

[41] Mr Boyce denies he either acknowledged he was to blame, or that he offered to resign, with him stating that in the meeting “Saumil Joshi turned around and asked me if I - he wanted to discuss if I wanted to resign. I said no, then Michael Girgis took me out the black doors and before we just got out the black doors he asked me if I wanted to come back upstairs and fill in a resignation letter and I said no” 49 (emphasis added). His witness statement is consistent with his oral evidence about being given an option to resign: “After I exited the signing office area, Mr Girgis offered to allow me to resign by signing a letter of resignation in the office. I did not accept this”50 (emphasis added).

[42] Mr Joshi’s evidence is that he recollected Mr Boyce being given an option to resign:

(MR GIRGIS) “What occurred in the meeting with Shaun on the 8th?---Okay. So after we finished with Jonathan, we obviously called Shaun to have a meeting with us, and then we already explained to him that Jonathan already gave us a written statement and you are the one who gave him an instruction to follow a shortcut to dispose all the hard rubbish, and then after, he admit his mistake and we give him the option to resign, and then when I posted together resignation form with the whole company policy, before I come back he just change his mind and he about to walk off.” 51

[43] Mr Girgis’ evidence is that he heard Mr Boyce offer to resign:

(MR COMITO) “Okay. Was there a resignation discussed at the meeting on the 8th?---Yes, Shaun opted to resign and that's when Sam went and got - went to retrieve a resignation form and Shaun had changed his decision.

Did Shaun offer to resign, did he?---Yes.

It was Sam's earlier evidence that Sam put that option to Shaun?---What I saw was he offered.

So Sam is incorrect and you're right?---I'm not saying that's - I'm giving you my evidence, so - - -

Okay?---Yes.

THE COMMISSIONER: What is your evidence? What did Mr Boyce say?---Yes, he opted. After - - -

No, that's not what he said. What did he say?---"Yes, I would like to resign."

He said those words?---Yes. Hence the reason why Sam left the room to get a form.” 52

[44] Mr Joshi says he left the meeting room to get a resignation form, with it being IKON’s policy that all resignations are required to be processed through a resignation form and that he would not have gone to get the form unless he was satisfied that Mr Boyce wanted to resign. By the time he returned Mr Boyce had changed his mind. He realised this was the case as Mr Boyce just stood up and walked past him saying nothing. 53

[45] The product of the three meetings, two with Mr Boyce and one with Mr Granil the Respondent submits serve as evidence of the investigation it carried out into the incident on 7 February 2019. Mr Girgis being the then IKON Operations Manager subsequently reported these matters to his then General Manager Victor Alaikis (Mr Girgis has since become the General Manager). In particular, he relied on Mr Granil’s statement that Mr Boyce was to blame; that Mr Boyce had admitted to the conduct, to which he had initially denied; and that Mr Boyce had initially offered or agreed to resign however, had then changed his mind. Mr Girgis also reported that Mr Boyce had failed to inform his supervisor of the incident, Mr Papadopoulos, which was contrary to the company’s policy. He also informed the General Manager about Mr Boyce’s past driving record. 54 Having put this information to the General Manager, Mr Alaikis decided to dismiss Mr Boyce.

[46] The Applicant’s dismissal was communicated to him in a letter dated 12 February 2019, the terms of which are set out above.

LEGISLATION

[47] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

CONSIDERATION

[48] Determination of whether Mr Boyce’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[49] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way: 55

“[28]The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

• a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 56

• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 57

• it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 58

• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 59 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

• the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 60” (original references)

[50] I will deal with each of the criteria within s.387 in turn.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[51] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship:

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 61

[52] Mr Boyce disputes that he was issued with a warning pertaining to the November 2018 incident; that he instructed Mr Granil to take the shortcut on 7 February 2019; or that in the 8 February 2019 meeting that he indicated a willingness to resign at first but then changed his mind.

[53] Mr Boyce’s manner of giving evidence shows him to be a person of few words and with some difficulty in expressing himself. He may well have broader difficulties in recollecting events and conversations. Despite these difficulties, I did not view him as untruthful or unreliable; he has tried his best to recall what actually occurred.

[54] Although Mr Granil did not present as someone who was afflicted with difficulties of recall, he did appear struggle with recall of these events; how they came to occur; or what was said to him. Mr Girgis’ evidence is that in the 8 February 2019 meeting Mr Granil said he was instructed to take the shortcut through the taxi waiting area by Mr Boyce. 62 This appears to have been the first occasion on which the “instruction” claim was made. That claim was then incorporated into Mr Granil’s statement written out in the second part of the meeting on 8 February 2019. He then gave evidence that Mr Boyce instructed this to occur through two means:

(MR COMITO) “So what did he say? What were the exact words, or as far as you can recollect?---Shaun Boyce instructed me to take a short cut to a taxi rank. So he pointed the direction. He not only said it, but he pointed as well.

So he pointed?---Yes, he pointed.

Yes?---So I just followed what he said.

You turned left?---Yes.

Which hand did he use to point?---I can't recall which hand, but he pointed.

(Indistinct)?---Well, I'm driving. I can't - I saw him just signal one of his hands. I can't remember if it was the left or right.

And that's what he did, he just pointed?---Yes.

He didn't say anything, he just pointed?---No, both - he said yes, that's our left turn over there. So then, that's it, turn left.

And you said that's an instruction for you to turn left? You believe that was an instruction?---Well, that's what my statement is. I stand by what statement said here.” 63

[55] Mr Granil’s evidence is then that the first time he knew there was a problem with his route was when he lost brake pressure. 64 Mr Boyce’s evidence, not contradicted by Mr Granil, was that this realisation was further down the road from the bollard that had been hit.65 Mr Kekovski recollected that when he attended the incident scene that he “saw a trace of oil that went from the taxi rank and all the way to a compound where the truck was parked”,66 noting the distance may be explained by the need to stop the truck where it was safe to do so. Unlike Mr Boyce, who “heard a scrape as the truck passed through the taxi rank and over a concrete bollard”67 Mr Granil did not hear68 or otherwise sense the truck hitting the bollard.

[56] Employment by Mr Granil of the words “instructed” or “instruction” are interesting choices of words, implying Mr Granil was left with the impression there was no choice but to turn left into the taxi laneway. Mr Boyce’s evidence is that he told Mr Granil not take the short cut:

[57] The manner in which each person gave their evidence and their lack of specific recall of actual conversations or actions makes it difficult to prefer one over the other, despite the inconsistencies in what they have said. In considering the evidence overall, there is no point at which Mr Boyce agreed that he actually had instructed Mr Granil as alleged. The closest the evidence comes to such a point is with the proposition that Mr Boyce first agreed to resign in the meeting on 8 February 2019.

[58] While it is somewhat plausible that a driver and passenger in a rubbish truck driving around the Southbank casino precinct around 4:00 AM in the morning might take a shortcut that obviated the need to travel a long way around the block it is implausible on the basis of the evidence given to me either that Mr Granil was “instructed” to turn left and did so because he thought he had no choice, or that Mr Boyce remonstrated with Mr Granil when he was about to turn left telling him that he should not do so. It is implausible because neither person could actually recall what was said or done in any great detail. Both witnesses were clipped in their evidence, with Mr Granil saying that there had been a few words spoken and some hand gestures and Mr Boyce merely saying that he told Mr Granil not do what he was about to but that the latter refused.

[59] No part of this evidence from either man speaks to what may be expected in the event of an instruction ignored; there was no argument; there were no raised voices; there were no elements of reasoning.

[60] If anything, Mr Granil’s evidence is the less plausible in that having turned a truck into a laneway and then hit a concrete bollard causing damage to his truck Mr Granil failed to hear or otherwise sense the event. His evidence is also implausible from the point of view that there is no recollection of having even seen the block which, it seems, rose out of the ground to such a sufficient height that it caused damage to the truck’s transmission. It is improbable that Mr Granil did not know that his truck had made contact with the bollard or was damaged until he lost brake pressure, being the point referred to by Mr Boyce as being “further down the road from the bollard”. Mr Boyce heard the truck scrape the concrete block, which seems far more plausible than Mr Granil’s claim that he did not hear the impact.

[61] There is no evidence from Mr Granil that shortly after the event he complained to anyone along the lines that “this is all Boyce’s fault, he told me to turn into laneway and I had no choice”. The first that this claim surfaced was in the meeting on 8 February 2019, more than 24 hours after the incident. On the other hand it must also be observed that there is no evidence on the part of Mr Boyce that immediately following the truck stopping and the damage being discovered that he told anyone in the company that it was Mr Granil who was to blame because he had ignored what Mr Boyce had said to him.

[62] In all probability it is the case that both men realised that turning left into the taxi laneway was against policy and that they should not do so; that neither particularly objected to the other about what was about to occur; and that instead both were consensual in the taking of the shortcut. It is also likely on the balance of probabilities that Mr Granil realised the truck had made contact with the concrete block, but hoped that the contact had not damaged the truck, which hope fell away once he lost brake pressure. On that basis, the balance of probabilities, both men must be seen as culpable for the incident, but with Mr Granil being the more culpable, since he was the one in charge of and driving the truck at the time.

[63] This analysis does not lead to a finding that Mr Boyce had committed misconduct in instructing Mr Granil to take the shortcut. The furthest it goes is to a finding that there was misconduct on Mr Boyce’s part in going along with taking the shortcut. Which man first thought of the idea is a moot point. Likely neither said to the other “what are you doing?” or “I’m not going to do that”.

[64] Mr Boyce says that he specifically told Mr Granil not to take shortcut. This is a moment of clarity within his evidence which is otherwise featured by an overall lack of clarity and his recollection in this regard is unable to be accepted. In all likelihood Mr Boyce did not actually remonstrate with Mr Granil in the way that he claims.

[65] While that is so, the question needs to be asked as to whether a failure to remonstrate with Mr Granil amounts to misconduct on Mr Boyce’s part? In the end neither witness has been especially candid on the subject. It is also likely a debatable proposition as to what actually could be done by a passenger in a rubbish truck being driven by a driver about to do something that he should not. Other than telling the driver the path should not be taken there is reasonably no action that Mr Boyce could have safely taken other than to report Mr Granil’s failure to follow company requirements or what had been said to him.

[66] The investigation of the circumstance on 7 February 2019 was poor and featured by numerous assumptions about Mr Boyce’s conduct.

[67] Mr Joshi had the most to say about how the incident unfolded and how it was investigated, however his evidence is difficult to accept without reservation for a number of reasons. He frequently made assumptions about questions that were being asked, attempting to provide an answer before the question had been finalised. If that is how he pursued the investigation, it would have been unlikely that he would have got to the bottom of the matter dispassionately and neutrally. While Mr Girgis submitted that when Mr Joshi was giving evidence he was “stressed a little bit … [and] … the English barrier did not help” 70 I would not agree that those matters adequately explain the defects in Mr Joshi’s evidence. When he was required to listen carefully to questions in cross-examination, he gave answers with no hint of a lack of understanding of the question or ability to respond. In any event, Mr Joshi appears to have been integral to the conduct of the investigation, and his involvement such as it was, presumably, in English. Whether or not that was a good idea for IKON does not require examination – that is how he participated in the investigation, and the product of his involvement was integral to how the company formed the views it did about Mr Boyce’s conduct.

[68] Mr Joshi accepted that he had made the assumption that the culprit for the incident was Mr Boyce, having formed the view simply because Mr Boyce was in the cab and because of the differences in driving abilities of Mr Granil and Mr Boyce:

(MR COMITO) “So you assumed he did instruct Mr Granil at the time?---Yes, because as I said in previous recommendation, Jonathan Granil with us, driving truck driver as a full-time truck driver role, and I didn't have any issue with him or I didn't have any things with him to use this thing, so.

Yes. So at the meeting on 7 February you assumed Mr Boyce had instructed because of the difference in driving abilities?---Yes, because as I said, if Jonathan Granil in past statements, if he didn't take shortcuts, and if once incidents happen, and when Shaun Boyce was there, so yes, that's the things” 71

[69] Mr Joshi’s evidence was that Mr Boyce did not admit telling Mr Granil to turn into the shortcut and that he formed that view in the course of 7 February 2019 meeting:

(MR COMITO) “You stated in your statement that Mr Joyce(sic) did not admit to telling Mr Granil to turn into the shortcut?---Yes.

And you stated that was because of the way you observed him during the meeting?---No, that as you - okay, so once question finished, then I will answer you, yes.

That's one reason. Is that right? Yes?---No.

What was the reason why he didn't admit? What brought it about?---Because as I said to you, because when he's in fault in front of the manager, he don't want to submit or he don't want to admit his mistake, so on that day we didn't talk any decision. We said to him, "Let me speak to Jonathan or get more evidence, and we will get back to you."” 72

[70] There is no evidence before the Commission that Mr Granil was seriously asked his recollection of the incident or the events leading up to it, or how it came to occur or why it is that he had no recollection of having seen the bollard before hitting it or that he had actually hit it before he lost brake pressure. There were no questions to Mr Granil about what it was that Mr Boyce had said to him or why he thought he had no choice but to follow what was said or that it was a good idea to do so. IKON have inadequately explained why Mr Granil – the driver of the truck – was allowed to leave at the end of his shift without being interviewed. The lack of any real effort to obtain Mr Granil’s recollection on the day of the event merely reinforces there was an assumption on the part of IKON that Mr Boyce was at fault. If the assumption is grounded in objective fact about what was known or described to the company on 7 February 2019, those facts are not before the Commission.

[71] IKON advance the proposition that in the course of the meeting on 8 February 2019, Mr Boyce initially accepted that he should resign and that between the time Mr Joshi left the room to locate a resignation notice and when he returned a few minutes later that Mr Boyce had changed his mind. After considering the Applicant’s demeanour during his evidence it appears more than likely there was a discussion initiated by Mr Joshi about Mr Boyce’s preparedness to resign and that as a result Mr Joshi left the room to obtain a resignation notice. Who initiated the conversation is, within the context of everything else said, not something that requires resolution in this decision. Mr Girgis’ evidence is that Mr Boyce said words to the effect that “Yes, I would like to resign”. 73

[72] Possibly this exchange actually did occur, however aside from the challenge Mr Boyce puts to the evidence, there are inconsistencies even between Mr Girgis and Mr Joshi’s evidence on the subject about who initiated the consideration of there being a resignation. Mr Joshi said in examination-in-chief that “I am the one who gave him the option to resignation, because he did admit mistake and guilty” 74 Mr Girgis recollects that Mr Boyce offered to resign.75 Even so, if there was a statement by Mr Boyce that he would resign, such is likely not able to be taken as an admission of culpability on Mr Boyce’s part, with it instead being more likely a response to the likely pressure Mr Boyce felt in the meeting. In any event such response as Mr Boyce actually did give was withdrawn a few minutes later.

[73] IKON have put forward as one of the reasons for dismissal of Mr Boyce that he failed to follow the correct incident reporting procedure when he reported the shortcut to Mr Kekovski, instead of to his team leader Mr Papadopoulos. The evidence on the subject indicates that following the incident on 7 February 2019 that Mr Granil reported the damaged vehicle to Mr Papadopoulos 76 who then attended the scene, and that Mr Boyce reported it to Mr Kekovksi.77 Mr Kekvoski’s witness statement says that he called Mr Papadopolous to notify him of the accident and the damaged truck.78 Mr Kekovski also states that:

“Once the area had been cleaned and oil removed, I then contacted the Bins Package Manager, Saumil Joshi, to notify him of the incident and to advise him that Shaun had incorrectly contacted him instead of the correct Team Leader, Kostas Papadopoulos” 79

[74] Likely this is the origin of the allegation made against Mr Boyce, instead of there being any actual lack of notification to, or attendance at the scene by, Mr Papadopolous. There is no question that Mr Papadopoulos had the incident reported to him and that Mr Boyce was involved in it having notified Mr Joshi of the situation at about 4.40 AM with him having “had received contact from External Team Leader, Ljupco Kekovski, stating that he had received a call from Shaun Boyce notifying Mr Kekovski that there was an oil spill in the taxi rank under the Kingsway Bridge”. 80 Mr Boyce recalls that Mr Papadopolous then attended the scene of the incident.81 There has been no adequate explanation on the part of the company witnesses why it criticises Mr Boyce on the subject to the point of including the matter in the reasons for termination. In any event Mr Granil had done so. There was simply no need for Mr Boyce to do separately what Mr Granil had done. The complaint on the part of IKON that Mr Boyce had failed to follow correct procedure by not reporting the incident himself to Mr Papadopoulos is an artifice and not a particularly elegant one at that.

[75] As detailed above, the evidence allows findings that there was likely misconduct on the part of Mr Boyce in participating in the taking of the shortcut and not actively challenging it. Such a finding though would not rise to the level of it being serious misconduct.

[76] The critical question in consideration of s.387(a) is whether there was a valid reason held by IKON for Mr Boyce’s termination of employment. As set out above, I can rely upon four “serious concerns” for Mr Boyce’s dismissal:

“• Breach of company procedure whereby you instructed a less experienced truck driver, Jonathan Granil, to take a short cut by driving through a taxi rank on 7'" February 2019

• Damage to IKON property (Truck transmission case)

• First Written Warning Issued 30'" November 2018 whereby you failed to follow correct procedure relating to your servicing of the Bins stations” 82

[77] In relation to these formatters, the allegation that Mr Boyce instructed Mr Granil to take a shortcut is not established and neither is the allegation that Mr Boyce failed to follow the correct incident reporting procedure when he failed to report the incident to Mr Papadopoulos. Having made the finding that there is insufficient evidence to establish that Mr Boyce instructed Mr Granil to do anything, such culpability as there may be in respect of there being damage to the trucks transmission case is restricted to Mr Boyce’s participatory conduct. Since I am unable to establish that Mr Boyce actually challenged Mr Granil when he took the shortcut, some culpability in respect of the damage to the truck flows to Mr Boyce, however it is relatively limited given he was a passenger in the truck and not the driver.

[78] On the subject of the written warning said to have been issued to Mr Boyce previously in November 2018, the evidence allows findings that Mr Boyce was admonished about the situation, but that he objected to what was being said to him with that objection rising to an indication on his part that he was not about to accept warning. He also wanted to consult his union. The evidence from Mr Joshi about issuing the warning is limited and as a result of the concerns I have about Mr Joshi’s evidence in general it is probable that he intended to formally issue the warning but never got around to it. Whether or not that is actually the case though is not determinative of my consideration of the matters required to be taken into account in respect of s.387(a).

[79] The fact that an earlier warning had been discussed with Mr Boyce and possibly given does not change my finds. Mr Boyce accepts that a warning was discussed with him in the meeting in November 2018, but contests whether one was ever given to him. 83 Mr Joshi records that the meeting concerned Mr Boyce “falsifying his servicing of the Yarra 4 bin area, not undertaking his required duties and failure to adhere to company policy and procedure”.84 The disputed warning itself contains the caution set out in the background section above and is couched as both being a first and final warning that his conduct has fallen below the acceptable standard and that it is an opportunity for him to learn from the mistake and should be treated as a development opportunity..

[80] Even if the written warning was actually given by Mr Joshi as he argues, such does not overcome the investigatory defects in consideration of the 7 February 2019 incident. Had a proper investigation dispassionately established that Mr Boyce had likely directed Mr Granil to turn into the taxi laneway, the warning could be taken into account as tipping the balance in favour of dismissal; however, that is not what occurred. Instead the investigation assumed Mr Boyce’s conduct, rather than establishing it.

[81] The differential treatment of the two employees concerned also needs to be considered. Mr Granil claims to have been instructed to turn into the taxi laneway; but does not say he saw the obstacle before he hit it or that he either heard or otherwise sensed the impact. Even if he had been directed to take the turn as the driver he could have refused. He was given a first and final written warning with IKON deciding it was appropriate to issue a warning after taking into account his record with the company. The terms of the warning given to Mr Granil are set out above, and are couched as both being a first and final warning that his conduct has fallen below the acceptable standard and that it is an opportunity for him to learn from the mistake and should be treated as a development opportunity.

[82] On balance Mr Granil’s conduct seems to have been more culpable than Mr Boyce’s, for the reason that he was the driver of the vehicle, but offset by his good employment record. Mr Boyce otherwise had a more troubled work history, but not excessively so, and if he did suggest Mr Granil to take the turn into the taxi laneway then the two together should not have led to a more severe punishment than meted to Mr Granil.

[83] Returning to the reasons set out in the termination letter of 12 February 2019 it has not been established on the balance of probabilities that Mr Boyce instructed Mr Granil to take the shortcut through the taxi rank on 7 February 2019 or that, directly, his conduct lead to damage of the IKON property in the form of the truck transmission case. The evidence in relation to whether or not Mr Boyce followed the correct incident reporting procedure does not reasonably lead to the conclusion that Mr Boyce failed to follow the procedure. In conclusion the evidence does not satisfy me that there was a valid reason for Mr Boyce’s dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees).

(b) whether the person was notified of that reason

[84] Mr Boyce was notified of the reasons held by IKON for the termination of his employment through the termination letter dated 12 February 2019.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[85] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal. 85 While so, it is also accepted that “an opportunity to respond” amounts to an opportunity to provide reasoning to a decision maker that would, all things being equal, allow a reasoned explanation to cause the decision maker to accept what is proffered and to change from their foreshadowed path.

[86] The evidence would, however, allow a finding that Mr Boyce was given an opportunity to provide a denial to the allegation made against him.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[87] There was no refusal by IKON to allow Mr Boyce to have a support person to assist him in discussions relating to the company’s allegations.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[88] As set out above, there is a disputed warning from November 2018 about Mr Boyce’s work performance, however the matters that are the subject of the warning (even if given) were not the operative reason for his termination of employment.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[89] The employer response form filed in these proceedings by IKON indicates it employed 435 employees in total at the time Mr Boyce was dismissed, of whom 211 were full-time. There is no evidence that would lead to a finding that the size of the employer’s enterprise either would have been likely to impact on the procedures followed in effecting the dismissal or that it did so.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[90] Part of the evidence before the Commission includes that the company employs a Human Resource Manager, Matthew Ford, who is the signatory of the two warnings referred to in the evidence and is also the person whose name appears on the Employer Response Form for contact about the application. While Mr Ford did not give evidence in these proceedings, I make no inferences made about that situation. The overall evidence before the Commission does not reasonably lead to a finding either that IKON lacked dedicated human resource management specialist expertise or that such impacted on the procedures IKON followed in effecting Mr Boyce’s dismissal.

(h) any other matters that the FWC considers relevant

[91] No matters beyond those referred to above require being taken into account in the formulation of this decision. While Mr Boyce’s evidence discloses a medical condition he suffers from I do not consider that such condition has contributed to his dismissal or the procedures followed to implement it.

[92] Consideration of the evidence before the Commission leads to a finding that Mr Boyce was unfairly dismissed within the meaning of s.385 of the Act for the reason that his dismissal was harsh and unjust. In the circumstances before the Commission, it was unjust to dismiss Mr Boyce because the operative part of the reason held by IKON for his dismissal, namely that he had instructed Mr Granil to take the taxi laneway, is not established on the evidence. It was also harsh to dismiss Mr Boyce given that the person who actually did turn into the laneway and damage the truck, Mr Granil, was not dismissed, and after taking into account their respective work histories with IKON.

[93] Having found that Mr Boyce was unfairly dismissed it is now necessary to determine an appropriate remedy.

REMEDY

[94] The provisions of the Act dealing with remedy once a finding of unfair dismissal has been made are within ss.390 – 392. Pursuant to subsection 390(3) of the Act an order for the payment of compensation to a person must not be made unless the Fair Work Commission “is satisfied that reinstatement of a person is inappropriate” and also that the Commission “considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[95] Mr Boyce does not seek reinstatement and I accept that reinstatement would be problematic for both parties and as such is inappropriate.

[96] Section 392 of the Act deals with the assessment of compensation, providing the following:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(1) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(1) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(2) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[97] In assessing the amount of the order for compensation, I now turn to each of the criteria within s.392(2).

(a) the effect of the order on the viability of the employer’s enterprise

[98] There is no evidence that an order of compensation for any amount would affect the viability of IKON’s enterprise. 86

(b) the length of the person’s service with the employer

[99] Mr Boyce’s length of employment with IKON is relatively short, being a period totalling around 18 months between 17 August 2017 and 12 February 2019. This is neither an especially short period of employment nor a long period. The overall length of Mr Boyce’s employment does not require an adjustment to the amount of compensation to be ordered.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[100] In matters in which compensation is a consideration, the Commission ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to “anticipated period of employment”. The Full Bench of the Australian Industrial Relations Commission has observed the following in relation to these matters:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

". . . we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law."

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.” 87 (endnotes omitted)

[101] While I have found that there was not a valid reason for Mr Boyce’s termination of employment in February 2019 that is not to say that his employment with IKON would have continued indefinitely. As referred to in this decision, the principal reason for not finding that there was a valid reason for his termination of employment relates to the matters established in the course of the investigation, such as it was.

[102] It is not inconceivable that with a proper investigation into the circumstances of 7 February 2019 IKON could have shown it was Mr Boyce who instructed Mr Granil to turn into the taxi laneway. While not inconceivable, having viewed the respective witnesses giving their evidence, such attracts only a low probability and it would be more likely that IKON would still have insufficient evidence in order to assess on the balance of probabilities that Mr Boyce’s conduct was as alleged.

[103] There is then also the situation that even if IKON were able to establish that Mr Boyce was the one who directed the change in the truck’s path there is the fact that Mr Granil was not dismissed despite potentially having greater culpability than Mr Boyce. A further matter to be taken into account in assessing the anticipated period of employment is the counselling given to Mr Boyce in November 2018, even if there is no acceptance that he was provided with a written warning on the subject.

[104] Drawing these matters together I consider that it would have been unlikely that even with a better conducted investigation that IKON could have found sufficient evidence to justify Mr Boyce’s dismissal in February 2019. Instead, I consider it more likely that a more proficiently conducted investigation would find Mr Boyce at the least did not challenge the truck turning into the taxi laneway or perhaps even consensually discussed with Mr Grinal that he drive into it. At that point IKON would likely have been required to give Mr Boyce a further warning about his conduct. These things together would likely cause further fraction in the overall employment relationship which in turn would mean Mr Boyce’s anticipated period of employment would be much shorter rather than longer. On behalf of Mr Boyce his lawyer, Mr Comito, submitted that at the date of the hearing Mr Boyce’s loss since being dismissed had been in the vicinity of 18 weeks. 88 While that may be the case, such period does not equate to what may be regarded as a fair assessment of Mr Boyce’s likely future period of employment with IKON.

[105] In finality, it is my conclusion that because of what would likely have been an inevitable deterioration in the employment relationship the future period of employment was no more than six weeks.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[106] Mr Boyce gave general evidence about his efforts to obtain alternative employment. While his efforts in this regard were not detailed to the Commission, I accept that in the context of his overall evidence that he has endeavoured to mitigate his losses by seeking alternative employment but that at the date of the hearing he had been unsuccessful in obtaining other employment. In forming this view, I have taken into account the disclosure made by Mr Boyce in submissions on his behalf that a medical condition he suffers from “has made it more difficult for him to obtain alternative employment”.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[107] Mr Boyce’s evidence was at the date of the hearing he had not earned any income since being dismissed by IKON.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

[108] Despite being unaware of any employment of Mr Boyce obtained since the date of hearing, I am satisfied that the amount of compensation to be ordered by me is in relation to his past losses only and that all of the anticipated period of employment, as translated into the order for compensation, has passed by the time this decision is issued.

(g) any other matter that the FWC considers relevant.

[109] Save for one matter I do not consider that there are any other matters relevant to the assessment of compensation. While Mr Boyce has disclosed to the Commission a medical condition that he argues “has made it more difficult for him to obtain alternative employment” I have taken that matter into account in assessing whether an adjustment of compensation is required for reason of his efforts to mitigate his loss from employment and do not consider that the matter requires reconsideration under s.387(h).

[110] The matter requiring consideration is the obligation in s.392(3) requiring the Commission to reduce the amount it would otherwise order by an appropriate amount on account of any misconduct which has been established by the Commission and found to have contributed to IKON’s decision to dismiss Mr Boyce. As referred to above, the only matter of misconduct found by the Commission is that associated with being in the truck and likely not firmly remonstrating with Mr Granil when he turned into the taxi laneway or immediately reporting the transgression to IKON management as soon as the incident was learned off by them. Such misconduct as that may represent is at the lower end of the scale. I have taken this matter into account in assessing the anticipated period of employment and do not make any further deduction because of this misconduct. To be clear, had this level of misconduct not been present, it is likely that the anticipated period of employment established by me would have been longer than the six weeks indicated.

Compensation – how is the amount to be calculated?

[111] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 89 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages90.”91

[112] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

Step 1

[113] Mr Boyce’s evidence about his earnings at the date of termination is that he received gross wages of $1249.51 per week which was inclusive of penalty and shift allowances and employer superannuation contributions. 92 I have estimated the remuneration Mr Boyce would have received, or would have been likely to have received, if IKON had not terminated his employment to be $7497 on the basis of my finding that Mr Boyce’s anticipated period of employment would have been a further period of six weeks.

Step 2

[114] Only monies earned since termination for the anticipated period of employment are to be deducted. 93 I have found that Mr Boyce earned no remuneration from the date of his dismissal, and that there is also reasonably no remuneration reasonably likely to be earned by him between the making of the order for compensation and the payment of compensation ordered in this decision.

Step 3

[115] It is necessary to consider the impact of both favourable and unfavourable contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment, 94 noting that it may not be appropriate to deduct contingencies if all of the projected period of continued employment has passed.95 In Mr Boyce’s case, I find there are none that ought to be taken into account in this matter, since the whole of the anticipated period of employment has passed.

Step 4

[116] I have considered the impact of taxation but have elected to settle a gross amount as set out in the table below and the compensation to be ordered will be subject to taxation according to law.

[117] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.” 96 I find that it is with the deduction for misconduct referred to below.

Compensation – is the amount to be reduced on account of misconduct?

[118] If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by s.392(3) of the Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct. As set out above, the reduction of compensation to be ordered to Mr Boyce for reason of his misconduct is included within the calculation of the anticipated period of employment and no further deduction is made. This is for the reason that the anticipated period of employment is directly connected with my estimation of the effect on the employment relationship of such finding about Mr Boyce’s misconduct as can be made. Had such finding not been made, the anticipated period of employment could be longer than the estimated six weeks.

Compensation – how does the compensation cap apply?

[119] Section 392(5) of the Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:

(a) the amount worked out under section 392(6); and

(b) half the amount of the high income threshold immediately before the dismissal.

[120] The amount worked out under section 392(6) is the total of the following amounts:

(a) the total amount of the remuneration:

(i) received by the Applicant; or

(ii) to which the Applicant was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the Applicant was on leave without pay or without full pay while so employed during any part of that period – the amount of remuneration taken to have been received by the Applicant for the period of leave in accordance with the regulations.

[121] Relevant to the compensation cap established by s.392(5) of the Act, the amount of compensation be ordered by me does not exceed the total amount of the remuneration Mr Boyce was entitled to receive in the 26 weeks immediately before his dismissal. I also note for the purposes of s.392(5)(b) that the high income threshold immediately before the dismissal was $145,400. Half of that amount is $72,700.

[122] The gross amount to be ordered of $7497 is lower than the compensation cap.

CONCLUSION AND ORDERS

[123] In accordance with this decision, an order will be issued at the same time as this decision to the effect that the IKON Administration Pty Ltd pay the amount of $7497 to Mr Boyce within 14 days of publication of this decision.

COMMISSIONER

Appearances:

Mr M. Comito, lawyer for the Applicant.

Mr M. Giris for the Respondent.

Hearing details:

2019.

Melbourne:

3 July.

Printed by authority of the Commonwealth Government Printer

2 Exhibit A1, Witness Statement of Shaun Boyce, [2], [6].

3 Exhibit R5, Respondent Outline of Submissions, 24 June 2019, [2].

4 Exhibit A1, Attachment SM – 1.

5 Ibid, [7].

6 Ibid, [8].

7 Exhibit R2, Witness Statement of Samuil Joshi, 21 June 2019, [5].

8 Ibid, [7].

9 Ibid, [8].

10 Exhibit R6, Respondent Bundle of Documents, Attachment 1.

11 Transcript, PN 921.

12 Transcript, PN 250 – 252.

13 Exhibit A1, [10].

14 Exhibit R4, Witness Statement of Ljupco Kekovski, 24 June 2019, [7].

15 Exhibit A1, [9].

16 Transcript, PN 332.

17 Ibid, PN 350.

18 Ibid, PN 350 – 351.

19 Ibid, PN 382 – 389.

20 Ibid, PN 459 – 464.

21 Exhibit A1, [9].

22 Ibid, [14].

23 Ibid, [16].

24 Transcript, PN 165.

25 Ibid, PN 233.

26 Ibid, PN 403.

27 Ibid, PN 338.

28 Ibid, PN 469 – 471.

29 Ibid, PN 181.

30 Exhibit A1, [12].

31 Transcript, PN 926 – 929.

32 Exhibit A1, [13] – [14].

33 Ibid, [14].

34 Exhibit R3, Witness Statement of Saumil Joshi, 24 June 2019, [6]; Exhibit R2, [8].

35 Ibid, [7]

36 Transcript, PN 923 – 941.

37 Ibid, PN 942.

38 Exhibit R2, [9].

39 Transcript, PN 807.

40 Ibid, PN 698.

41 Ibid, PN 706 – 707.

42 Ibid, PN 913.

43 Ibid, PN 935.

44 Ibid, PN 426 – 429.

45 Employer Response Form, Form F3, Attachment.

46 Exhibit R6, Attachment 5.

47 Exhibit A1, [16].

48 Transcript, PN 969 – 971.

49 Ibid, PN 96.

50 Exhibit A1, 19.

51 Transcript, PN 553; see also PN 572, 759 - 760.

52 Ibid, PN 1024 – 1031.

53 Ibid, PN 768 – 773.

54 Ibid, PN 1041 - 1046.

55 Titan Plant Hire Pty Ltd v Shaun Van Malsen[2016] FWCFB 5520.

56 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

57 Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

58 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

59 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

60 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

61 Selvachandran v Peteron Plastics (1995) 62 IR 371, pg.373.

62 Transcript, PN 947.

63 Ibid, PN 459 – 467.

64 Ibid, PN 338, 471.

65 Exhibit A1, [9] – [10].

66 Exhibit R4, [7].

67 Exhibit A1, [9].

68 Transcript, PN 481.

69 Ibid, PN 165.

70 Ibid, PN 974.

71 Ibid, PN 706 – 707.

72 Ibid, PN 688 – 691.

73 Ibid, PN 1030.

74 Ibid, PN 572; see also in cross-examination at PN 759.

75 Ibid, PN 1024 – 1031.

76 Exhibit A1, [11]; Transcript, PN 488, 1201.

77 Exhibit A1, [12].

78 Exhibit R4, [8].

79 Ibid, [10].

80 Exhibit R2, [7].

81 Ibid, [11].

82 Exhibit A1, Attachment SM – 1.

83 Transcript, PN 82 – 86

84 Exhibit R2, [5].

85 Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].

86 Transcript, PN 1255.

87 Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at [33] and [34].

88 Transcript, PN 1232 -1233.

89 (1998) 88 IR 21.

90 [2013] FWCFB 431.

91 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].

92 Exhibit A1, [5].

93 Ibid.

94 Enhance Systems Pty Ltd v Cox[2001] AIRC 1138, [39].

95 Bowden v Ottrey Homes Ibid, at [54].

96 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].

Shaun Boyce v IKON Administration Pty Ltd

[2019] FWC 4763

6 SEPTEMBER 2019

DECISION

LEGISLATION

CONSIDERATION

REMEDY